A special education legal resource discussing case law, news, practical advocacy advice, and developments in state and federal laws, statutes and regulations. Postings include insight and sometimes humor from Charles P. Fox, a Chicago, Illinois attorney who is also a parent of child with special needs, and other guest authors. Email: [email protected]

July 05, 2012

Retaliation against parents for advocating on behalf of their special needs children with their school district is an unpleasant topic. No one really knows how often retaliation occurs, but clearly it has happened frequently enough for parental advocacy to be protected by Federal statute. Not only do Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) protect the disabled against discrimination, they also protect those acting on their behalf to ensure the rights of the disabled. Specifically, Section 504, which references Title VI of the Civil Rights Act of 1964, states that recipients of Federal funds, which would include school districts, “shall not intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by the Act, or because the individual has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part.”

Retaliation can be defined as “using official resources to ‘punish’ parents,” and it can take a wide range of forms from refusing to respond to emails or return phone calls, not allowing parents to view records, or continually canceling school meetings and conferences. But sometimes the retaliation can be more sinister. Anecdotally the internet is filled with stories of parents who claim their school districts have reported them to child protective services, filed truancy charges against them, or had restraining orders imposed on them, all as the result of their advocacy on behalf of their children.

July 02, 2012

In 2008, the Centers for Disease Control (CDC) estimated that almost 3 million children, or 1 in 25, had food allergy. More recently in 2011, the CDC estimated that up to 6 million children, or one in 13 children, had food allergies. Practically speaking, this means that about two children in every classroom have food allergies. Additionally, almost 40% of children with allergies have had severe reactions, and nearly 30% are allergic to multiple foods. Clearly, food allergies are becoming an increasingly serious problem for our nation’s children.

Recognizing the gravity of this problem, state legislatures are promulgating new laws to enable school staff to respond more rapidly to life-threatening anaphylactic reactions. Current legislation has allowed schools to store and administer medication; namely, EpiPens, to students having allergic reactions provided a doctor’s prescription is on file. Additionally, most states allow students to self-carry and self-administer EpiPens in the event of a reaction. This protocol is problematic, however, in the event that a child forgets his or her medication, school personnel are either unavailable or unable to access the locked medication, or the reaction is occurring in a student with an undiagnosed allergy, which unhappily occurs frequently. In fact, up to a quarter of severe allergic reactions occur in persons not previously diagnosed with food allergy, and up to 25% of first time reactions to peanuts or tree nuts have occurred in school settings. Across the country, children have died while school staff waited helplessly for paramedics after calling 911. In response, Illinois passed legislation last summer that allows schools to stock pile EpiPens, and, in an emergency, permits school nurses or other trained staff to administer medication to students with previously undiagnosed allergies who are experiencing life-threatening allergic reactions. Similar legislation is pending in five different states and in the federal government as well.